FREEDOM OF INFORMATION UPDATE  

BREAKING NEWS … 
During a speech on liberty at the University of Westminster on Friday 25 October, the Prime Minister announced a review of the current provision in the Public Records Act that records be transferred to The National Archives (or a place of deposit) by the time they are 30 years old.  His exact words were:

“It is an irony that the information that can be made available on request on current events and current decisions is still withheld as a matter of course for similar events and similar decisions that happened 20 or 25 years ago. 

Under the present arrangements historical records are transferred to The National Archives and are only opened to public access after 30 years or where explicitly requested under the FOI Act. It is time to look again at whether historical records can be made available for public inspection much more swiftly that under the current arrangements. 

There are of course cost and security implications of a more open approach and I have asked Paul Dacre, Editor-in-Chief of Associated Newspapers and member of the Press Complaints Commission – working with Sir Joe Pilling, former Permanent Secretary of the Northern Ireland Office, and the eminent historian David Cannadine – to review this rule. And we look forward to receiving their proposals in the first half of 2008.”

The National Archives will provide the secretariat for the review team. The terms of reference for the review allow for consultation with interested parties but the exact nature of this consultation will be for the review team to establish in due course.  

New on the ICO website 
Since the last FOI Update, ICO has issued some documents of particular interest to records managers and archivists:

•	Determining what is personal data provides up to date guidance on deciding when information constitutes personal data and hence is subject to the Data Protection Act. It is based on a report by the Article 29 Working Party, an EU advisory committee, and supersedes previous guidance. <http://www.ico.gov.uk/upload/documents/library/data_protection/detailed_specialist_guides/personal_data_flowchart_v1_with_preface001.pdf > 

•	Also on data protection, ICO is working on new guidance on relevant filing systems; in the meantime the Frequently Asked Questions attached to its previous guidance remain applicable – see  <http://www.ico.gov.uk/upload/documents/library/data_protection/detailed_specialist_guides/technical_guidance_note_faqs_relevant_filing_systems.pdf > 

•	ICO has issued its first Practice Recommendation against the code of practice on records management under FOIA s 46 - see <http://www.ico.gov.uk/upload/documents/library/freedom_of_information/notices/nottingham_cc_s46_pr_fpr_0150638.pdf> 

FOI Publication Schemes
ICO plans to issue model publication schemes for each sector for comment later this month, together with sector-specific guidance.  http://www.ico.gov.uk/Home/what_we_cover/freedom_of_information/publication_schemes.aspx).  

Recent Information Tribunal decisions
An interesting point emerged in the Tribunal decision in the case of Pauline Bluck v ICO and Epsom and St Helier NHS Trust. Having already decided to uphold use of the exemption at FOIA s 41, the Tribunal did not need to consider the Human Rights Act as a statute bar under FOIA s 44 but gave an indication (at paragraph 31) of how it would have decided if it had done so: “we would not be in favour of translating the general principles laid down in Article 8 into the form of specific legal prohibition to which we believe section 44 is intended to apply…. we do not believe that the effect of the Human Rights Act is to elevate to the level of a directly enforceable legal prohibition the general terms of Article 8. If a person is to be prohibited from taking a particular step he must be able to establish clearly whether or not his proposed actions fall within the scope of the prohibition and we do not think the language of Article 8, which is intended to guide public authorities to interpret their rights and obligations in a manner that is consistent with an individual’s right to a private and family life, is capable of providing that degree of certainty.”  Food for thought!

Code of Practice for archivists and records managers under section 51(4) of the Data Protection Act 1998
The code has now been published on the websites of its co-sponsors – The National Archives (http://www.nationalarchives.gov.uk/policy/dp/default.htm), Society of Archivists (http://www.archives.org.uk/professionalissues/dataprotectioncodeofpracticepublishedoctober2007.html) and Records Management Society (http://www.rms-gb.org.uk/resources/140). The National Association for Information Management is also a co-sponsor. Please draw the code to the attention of your colleagues.